Citation Nr: 1736671	
Decision Date: 08/31/17    Archive Date: 09/06/17

DOCKET NO.  11-22 501	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Los Angeles, California


THE ISSUES

1.  Entitlement to an initial rating in excess of 50 percent prior to August 29, 2008, and in excess of 70 percent thereafter for posttraumatic stress disorder (PTSD).  

2.  Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU).  


REPRESENTATION

Appellant represented by:	California Department of Veterans Affairs


WITNESSES AT HEARING ON APPEAL

The Veteran, R.G., his spouse, and K.M., his daughter



ATTORNEY FOR THE BOARD

Thomas D. Jones, Counsel


INTRODUCTION

The Veteran, who is the appellant, served on active duty from September 1967 to August 1970.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2005 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA) in Los Angeles, California.  

This appeal was previously remanded for additional development in February 2017.  The required development has been completed and this case is appropriately before the Board.  See Stegall v. West, 11 Vet. App. 268 (1998).  

At the time this appeal was initiated, the Veteran was represented by an attorney.  This representation was terminated, however, and in February 2017, a veterans service organization was appointed as representative by the Veteran, as noted on the first page of this decision.  

In April 2017, the Veteran and members of his family testified via video before a Veterans Law Judge.  A transcript of this hearing has been associated with the claims file.  


FINDINGS OF FACT

1.  The Veteran's PTSD is characterized by depression, anxiety, social isolation, hypervigilance, and emotional numbing, and results in total occupational impairment.  

2.  The Veteran's claim for entitlement to a TDIU is based solely on a single service-connected disability, PTSD, which is rated at 100 percent.


CONCLUSIONS OF LAW

1.  The criteria for an initial rating of 100 percent for PTSD have been met.  38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2014); 38 C.F.R. §§ 4.1-4.7, 4.130, Diagnostic Code (DC) 9411 (2016).  

2.  The claim of entitlement to a TDIU is rendered moot by the grant of an initial 100 percent schedular rating for PTSD, leaving no question of law or fact to decide on the TDIU issue.  38 U.S.C.A. §§ 7104, 7105 (West 2014); 38 C.F.R. §§ 4.14, 4.16 (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to notify and assist

With respect to the Veteran's claims decided herein, VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2016).  Given the favorable decision by the Board, there is no further duty to notify or assist the Veteran or to explain how VA complied with the duties to notify and assist.  

Increased rating - PTSD

The Veteran seeks an increased rating for a service-connected psychiatric disability, PTSD.  He contends the impairment resulting from this disability is more severe than is rated by VA, and an increased rating is warranted.  Currently, a 50 percent initial disability rating has been awarded for the period effective March 9, 2004, and a 70 percent rating has been awarded effective August 29, 2008 for his service-connected PTSD.  

Disability evaluations are based upon the average impairment of earning capacity as contemplated by the schedule for rating disabilities.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition.  Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991).  In adjudicating increased rating claims, the level of disability in all periods since the effective date of the grant of service connection must be taken into account, to include the possibility that a staged rating may be assigned.  See Fenderson v. West, 12 Vet. App. 119 (1998); Hart v. Mansfield, 21 Vet. App. 505 (2007).  As such, the Board will consider whether staged ratings are appropriate to the pending appeals.  In cases in which a reasonable doubt arises as to the appropriate degree of disability to be assigned, such doubt shall be resolved in favor of the Veteran.  38 C.F.R. § 4.3.  Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating.  38 C.F.R. § 4.7.  

PTSD is rated under Diagnostic Code 9411, and utilizes the General Rating Formula for Mental Disorders.  Under this Code, a 30 percent disability rating is warranted where there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of an inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as depressed mood, anxiety, suspiciousness, panic attacks, chronic sleep impairment, and mild memory loss.  

A 50 percent rating is warranted where there is occupational and social impairment with reduced reliability and productivity due to such symptoms as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty understanding complex commands; impairment of short and long-term memory (e.g. retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships.  

A 70 percent rating is warranted where there is occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively, impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and inability to establish and maintain effective relationships.  

A 100 percent evaluation for a psychiatric disability is warranted for total occupational and social impairment, due to such symptoms as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name.  38 C.F.R. § 4.130, Diagnostic Code 9411.  

In evaluating psychiatric disorders, the Board is mindful that the use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve only as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating.  Mauerhan v. Principi, 16 Vet. App. 436 (2002).  

In Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (2013), the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held that VA "intended the General Rating Formula to provide a regulatory framework for placing veterans on a disability spectrum based upon their objectively observable symptoms."  The Federal Circuit stated that "a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration."  It was further noted that "§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas."

After considering the totality of the record, the Board finds that a 100 percent (total) initial rating for the Veteran's PTSD is warranted for the entirety of the appeal.  The evidence suggests that this service-connected disability results in total occupational impairment for this Veteran.  

In statements to VA medical personnel and at his video hearing, the Veteran has provided lay evidence regarding psychiatric symptomatology and impairment caused by the service-connected PTSD.  As a layperson, the Veteran is competent to provide such testimony regarding observable symptomatology.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  The Veteran has reported poor sleep, heightened anger and irritability, a depressed mood, and impaired social interactions.  He has stated that he has not worked for many years, chiefly due to his PTSD.  Overall, the Veteran has contended that a higher disability rating is warranted.  

In support of his claim, the Veteran has submitted several treatment summaries from VA psychiatric care providers who have treated him during the pendency of this appeal.  These examiners have characterized the Veteran's PTSD as severe, leading to social isolation and total or near total occupational impairment.  

A November 2004 statement was received from K.B., M.D., a VA physician.  Dr. B. wrote that while the Veteran may improve in the future in response to treatment, he was currently "not able to work based on [an] inability to concentrate, poor social interaction skills, poor memory, and severe depression and anxiety."  

In a June 2006 letter, J.L.M., Ph.D., a VA psychologist, wrote that he had been treating the Veteran since June 2004.  Dr. M. reported that the Veteran suffered from depression, poor centration, memory loss, anxiety, and episodic suicidal ideation.  In the opinion of Dr. M., the Veteran was "totally and permanently disabled as a result of his [PTSD]."  

In a May 2010 letter, M.G.E., M.D., a VA psychiatrist, wrote that the Veteran was totally disabled due to "long-standing PTSD symptoms which have not responded to treatment."  Dr. E. noted that he began treating the Veteran in January 2007, at which time he exhibited such symptoms as difficulty in interpersonal relationships, hypervigilance, emotional numbing, intrusive thoughts, and severe sleep issues.  

The Board finds these statements highly probative, as they were authored by VA experts who met and examined the Veteran on multiple occasions, sometimes over a period of several years; as such, these statements provide competent evidence from VA examiners regarding the impairment resulting from the Veteran's PTSD.  Additionally, the remainder of the record is without significant evidence to the contrary.  In fact, VA treatment records reflect significant symptoms such as poor ability to describe problems, poor judgment, shallow depth of information and audio and visual hallucinations.  During a December 2010 VA treatment visit he reported past actions to hurt himself, most recently in 2006.  During that visit a GAF of 32 was assigned.  Another 2010 record noted suicidal ideation just the prior year.  Statements from his children also attest to the severity of his disability including inability to attend family events, fear of noises, incoherent speech, nightmares, anger, suicidal thoughts, violence towards others and difficulty caring for himself.  As such, the Board finds an initial rating of 100 percent is warranted effective March 9, 2004 to the present, based on total occupational impairment resulting from the Veteran's PTSD.  

TDIU

With respect to the Veteran's request for a TDIU, the Board notes that the Veteran now has a 100 percent evaluation for his PTSD for the entire appeal period.  A TDIU rating contemplates that the schedular rating is less than total.  38 C.F.R. § 4.16(a).  Because the Board has determined that the Veteran's PTSD warrants a 100 percent evaluation, effective March 9, 2004, and because the Veteran's request for a TDIU was filed during the claim period, the request for a TDIU is rendered moot.

The Board recognizes that it is not categorically true that assignment of a total schedular rating always renders a TDIU request moot, particularly as it relates to possible entitlement to special monthly compensation.  See Bradley v. Peake, 22 Vet. App. 280 (2008).  In Bradley, the Court held that a TDIU rating could be warranted in addition to a schedular 100 percent evaluation, where the TDIU could be granted for a disability other than the disability for which a 100 percent rating was in effect, explaining that under such circumstances, there was no "duplicate counting of disabilities."  Bradley, 22 Vet. App. at 293.  Unlike the situation in Bradley, the Veteran in this case is receiving compensation for just one disability, PTSD, for which a 100 percent schedular rating has been assigned.  Bradley is therefore distinguishable from the instant case, and the award of a 100 percent schedular evaluation does indeed render the TDIU request moot.  


ORDER

An initial rating of 100 percent for PTSD for the pendency of this appeal is granted.  

A TDIU is denied as moot.  



____________________________________________
H. SEESEL
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs

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